October 7, 2004

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In The Nation‘s October 9, 2000, special report on the Supreme Court, Tom Wicker wrote, “No issue is more vital…repeat, no issue is more important than the makeup of the next Supreme Court.” Today the war in Iraq and terrorism fears blot out the political sky. But the future makeup of the Supreme Court should remain a top priority for progressives.

You wouldn’t know this, though, from the scanty press coverage, the Court’s absence from political ads, the silence of the candidates. Kerry and Edwards are understandably training their fire on domestic matters like job losses, corporate corruption, budget deficits, Social Security, neglect of Iraq war vets, economic inequality, public education, shrinking healthcare coverage, an inadequate minimum wage. But a reactionary Supreme Court could negate a legislative solution to any of those problems.

The Bush Administration has kept relatively quiet about its most cherished objective–overruling Roe v. Wade. It’s no wonder, given that a majority of Republican voters, according to a May poll, don’t want Roe overturned–and neither do those coveted middle-of-the-road swing voters. Yet the President faces intense pressure to deliver the goods to his evangelical base, which dreams of a Roe reversal. It’s clear why Bush is dancing around the issue–but what about Kerry? He says he’s committed to appointing a Court that will protect women’s abortion rights, but he’s also said he would not rule out nominating lower-level judges who are antichoice, and he hasn’t made abortion rights a central issue of his campaign (see Katha Pollitt, page 12).

But without doubt, another four years of Bush’s thumb on the judicial scales will set this country on a hard-right social-political course for generations. It’s no secret he intends to fill the upcoming vacancies with ideological clones of Scalia and Thomas. According to Courting Disaster 2004, a People for the American Way report, a 5-to-4 majority Scalia-Thomas Court would narrow the Voting Rights Act in a way that could lead to racial discrimination; impose school prayer; ban affirmative action in higher education; curb government workers’ free speech; permit the destruction of endangered species on private land; bar legal-aid lawyers from challenging welfare laws and much more. (For a comprehensive account of the conservative legal strategy, see Right Wing Justice: The Conservative Campaign to Take Over the Courts by contributing editor Herman Schwartz, published by Nation Books.)

And Nan Aron of the valuable Alliance for Justice reminds us that we shouldn’t overlook the importance of the federal district and appellate courts, which have taken on more work since the Supremes reduced their own caseload. Bush has already appointed 201 judges. Ten of the thirteen circuits now have a majority of Republicans. Bush has picked not just Republicans but paleoconservatives like Charles Pickering and William Pryor (who received recess appointments after being filibustered in the Senate). Nearly a third of his nominees belong to the right-wing Federalist Society, which seeks to reverse progress in civil and women’s’ rights and undo worker, consumer and environmental protections in place since the New Deal. He has reversed President Clinton’s trend of nominating more women and minorities to the Court.

Kerry has said he’ll appoint “moderate” Justices, but more genuine liberals are needed to restore balance to a Supreme Court badly skewed to the right. The Court should rank high on the list of what’s at stake in this election. Its future will shape America’s.